Photo of Tom Posey

The Illinois Workers’ Compensation Commission has withdrawn an emergency rule it passed just weeks ago that would have made it easier for essential workers to claim they became sick with COVID-19 while on the job.

The withdrawal comes in the face of a Sangamon County Circuit Court decision granting an emergency request by the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association to block the new rule. The court found that in passing the emergency rule, which created a rebuttable presumption that essential workers who become sick with COVID-19 contracted it in the course of their employment, the Commission exceeded its rulemaking authority under the Illinois Administrative Procedure Act and the Illinois Workers Compensation Act. Under these laws, the Commission only has the authority to create procedural rules. The court determined the Commission had improperly created “new substantive rights for employees and new liabilities for employers,” which is the province of the Illinois Legislature, not the Commission.
Continue Reading Illinois withdraws rebuttable presumption rule for COVID-19 workers’ compensation claims

While all employers are facing an unprecedented whirlwind of rapidly changing circumstances as a result of the COVID-19 pandemic, employers with unionized workforces face additional challenges as they take action in response to the outbreak while trying to avoid running afoul of the requirements of their collective bargaining agreements and the National Labor Relations Act (NLRA). Here are a few suggestions for employers to consider as they navigate this new landscape.
Continue Reading Responding to COVID-19 in a unionized workplace

On March 24, 2020, the National Labor Relations Board (NLRB) decided to postpone the effective date of its final rule modifying the Agency’s regulation on union representative-case procedures, from April 16, 2020 to May 31, 2020, in order to facilitate the resolution of legal challenges.

The NLRB’s final rule, which rolled back some of the burdensome requirements of the “quickie election” rule issued under the Obama Administration, was published on December 13, 2019. Many employers argued that the original quickie election rule stripped them of the proper due process that they should have been afforded when served with a union representation petition. Further, employers complained that the rule inherently shortened the election campaign timeframe and impeded those employers that had hoped to give employees guidance about union representation, leaving such employees with substantially less time to consider important facts necessary for making a thoughtful choice during a union election.
Continue Reading NLRB extends effective date of its final rule modifying representation case procedures – Now effective May 31, 2020

On Tuesday, December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the National Labor Relations Board (the Board or NLRB) held that requiring employee confidentiality during workplace investigations does not constitute an unfair labor practice under the National Labor Relations Act (the Act or NLRA). This is yet another employer-friendly decision in a series of recent rulings overturning Obama-era Board precedent.

Back in 2015, the Board held that employers could require confidentiality during workplace investigations only where they demonstrated that confidentiality was necessary to preserve the integrity of the investigation. See Banner Estrella Med. Ctr., 362 NLRB 1108 (2015), enforcement denied on other grounds 851 F.3d 35 (D.C. Cir. 2017). This standard created a difficult situation for employers, placing the burden on them to determine if there was a need for confidentiality that outweighed any potential impact on workers’ NLRA rights. Moreover, the standard also conflicted with guidance from the Equal Employment Opportunity Commission (EEOC), which encourages employers to keep investigations confidential to protect victims and to encourage reporting.Continue Reading NLRB greenlights employer rules requiring employee confidentiality during workplace investigations

The National Labor Relations Board (Board or NLRB) issued on Friday its first proposed regulation in a series that will overhaul parts of union election procedures. The Board’s 113-page proposed rule, which was published in the Federal Register today, Monday, August 12, modifies three of the board’s election processes: (1) the handling of blocking charges; (2) the voluntary recognition bar; and (3) certain collective bargaining relationships involving employers in the construction industry. This piecemeal approach is consistent with Board Chairman John Ring’s statements at the American Bar Association’s labor and employment conference last November and is part of the rule-making agenda the Board announced in May.

Under the Obama administration, the Board passed the “quickie” or “ambush” election rule, which significantly shortens the time between the date an election petition is filed with the NLRB and the date the election is held, requires preelection hearings to be held very shortly after the filing of a representation petition, and requires employers to provide union representatives with far more information on potential voters than in the past. These new procedures were derided by employers and business groups, which was most clearly evidenced in 2017 when the Board received over 7,000 responses to its invitation for comments on whether to roll back these changes.

In the Board’s Friday announcement, a three-member majority, over one Board member objection, said, “The board believes, subject to comments, that the proposed amendments will better protect employees’ statutory right of free choice on questions concerning representation by removing unnecessary barriers to the fair and expeditious resolution of such questions through the preferred means of a board-conducted secret ballot election.” Chairman Ring added, “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom.” The Board’s lone Democrat, Lauren McFerran, objected to the proposed rule-making.
Continue Reading NLRB publishes proposed changes to union election procedures